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You have other issues aired in the Forum and two of them boil down to the same thing – your strata manager and/or committee doesn’t want to enforce your by-laws. That’s probably becasue your committee doesn’t want to do anything.
It sounds like it’s time you sat down with your chair and strata manager and asked them that age-old strata question – do you want to do this the hard way or the easy way? They aren’t going to save money by not pursuing by-law breachers … because if they do, you are going to pursue them (the committee) at NCAT.
So maybe it’s time they fulfilled their legal obligations … or got out of the way and let someone who’s prepared to manage the scheme properly take over.
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The process that’s underway seems to be pretty much the right thing, although you could put a motion to the next general meeting that the Owners Corp stops adding penalty interest to the debt Under Section 85(2) of the Act.
It may seem harsh to get debt collectors involved but you have to protect the interests of all owners and that may mean getting a court order that when and if the family sell their flat, the owners corporation will be repaid all the money it’s owed.
This family is clearly struggling but by not bringing this to a head, your Owners Corp may just be enabling them to get into more debt. Maybe they could move into a rental in your block, sell their flat, clear their debts and start again. Would that be so bad?
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Different schemes have different ways of handlign complaints. Some want to issue a warning or even three before issuing a Notice To Comply …But a Notice To Comply IS a warning. It says “you have breached a by-law and if you don’t stop we’ll take it further.”
It’s not a fine … it’s a threat.
Many people would say issuing one less formal warning initially is reasonable, followed by a Notice To Comply. Just passing on complaints is not doing anything other than being a mailman. Only a Notice To Comply can progress to action at NCAT so anything short of that is effectively doing nothing.
I’d say press on with this and demand immediate action.
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The essential issue here is that you have a by-law that has been breached. As the former Fair Trading minister Victor Dominello told me himself, owners corporations don’t get to pick and choose which by-laws they enforce. If they don’t like their by-laws, then they should ask 75 per cent of owners to agree to change them. Otherwise, they should just get on with it.
Now, your by-law is quite clear and it doesn’t mention the amount of smoke, the frequency of the drift or the effects – so you are right to complain.
In your shoes, I would show the committee and the strata manager section 232 of the Act (extract below) and tell them that if they don’t enforce it, you will take them to NCAT for no other reason than you have a better chance of getting costs in a case against them – and then they will have to pursue the smoker anyway.
This is not a dispute between two residents. It’s a by-law breach and if the committee and strata manager aren’t prepred to do their jobs, they should quit.
232 Orders to settle disputes or rectify complaints(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—
(a) the operation, administration or management of a strata scheme under this Act,
(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
So that’s your process. Warn them that if they do nothing, you will do something, so they might as well get on with it.
And don’t give up on strata – it’s a great way to live once you get the dickheads back in ther boxes.
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First of all, were these by-laws passed by a special resolution at a general meeting where:
a) It clearly said on the agenda that a special resolution vote would be required to pass the by-laws?
b) the vote at the meeting represented 75 per cent of those voting?
If any of these conditions weren’t satisfied, then the by-laws are invalid.
Otherwise, I think you could challenge the renovations bond by-law at NCAT on the grounds that it is “harsh, unconscionable and discriminatory”.
There are plenty of means by which the owners corporation can get compensation for damage done during renovations without placing such a high bar before you even start. And what are their plans for inspections before and after the renovations to establish if and when the damage occurred?
There is no doubt in my mind that NCAT would strike out this by-law (but I have been wrong about NCAT before). If they don’t, the committee could make life difficult for you by blocking access to tradespeople and harassing you with notices to comply.
On the question of parking, if the committee members have granted themselves parking rights to the exclusion of other owners, without reasonable compensation to the owners corporation, they are possibly guilty of “fraud against the minority”. You could raise that with your strata manager to see their reaction.
I would be telling them that they are obliged by law to manage the scheme for the benefit of all owners, not just themselves or even a majority of owners.
Also, if they continue with these tit-for-tat rulings, you will take the only option open to you which will be to apply to NCAT for the statutory appointment of a strata manager who will strip them of all their powers – probably for two years at least – and cost the scheme a lot of money becasue everything will have to be done by the book.
Personally, I would pay someone like our sponsors Strata Answers to approach the committee and your strata manager, tell them where they have gone wrong and explain the consequences of continuing with this behaviour.
Given that your strata manager responded to the original parking problem by issuing notices to comply to all owners, I’m not convinced that he or she is fully aware of their responsibilities or the legalk options open to you to pursue unfair treatment – otherwise they would have advised the committee against this discriminatory behaviour.
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On the question of offering advice that’s contrary to what, say, your strata manager has given, there are ways of doing this that aren’t directly critical of the SM.
Say, for instance, your SM (in NSW) has told the committee that it can’t pass a by-law banning short-term rentals. Rather than saying the SM is wrong, you could post a comment that says something like “this is contrary to advice received from other sources” and you would then quote those sources and let the residents make up their own minds.
The more authoritative the source of the advice, the greater the chances of the SM reviewing their own position. But saying the SM is misinformed, biased, out of touch or, worst of all, is wrong AGAIN, strays perilously close to being malicious, which would undermine any defence against defamation.
Not every criticism needs to be an attack, but faulty advice should be challenged. However, “faulty” isn’t merely an opininion that disagrees, even with the majority. There are laws, regulations, tribunal decisions and court verdicts that are all readily available online, and which establish the basic facts of the matters under discussion.
Just be wary about the “bush lawyers” – online warriors who will cherry-pick a bits of laws and regulations that have nothing to do with each other, conflate them and then present that as a proven legal argument. Unless they can cite a documented precedent or are prepared to pay for a lawyer to run that idea through a court or a tribunal, their opinion has no more value than a chat at a barbie.
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I was going to say, depends what you mean by “generally”. You don’t have to name someone to identify them – association is enough (which is why we discourage people from using their real names).
However, in your case, if you look at the recent NSW Appeals Court decision in the “letterbox” defamation case, it seems you can say what you want as long as it is within a closed group of residents in the one scheme and it isn’t malicious.
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My strata manager mates will hate me for saying this but the SM is just a delegated functionary of the owners corp, in this regard. To put this simply, you are the boss of the SM, not the other way round.
At any point, the owners corp, as embodied but the strata committee, can resume control of things like the minutes.
So rewrite the minutes to properly reflect the decisions of the meeting (you don’t need to wait for the next AGM), send them to the strata manager and politely ask them to send out a) an apology for sending out inaccurate minutes and b) the corrected minutes as agreed by you and the secretary.
If the strata manager refuses or doesn’t comply within, say, five working days, send the minutes out yourself and, at the same time, raise a complaint with Fair Trading (who will do absolutely nothing – but at least it will be on record that the SM allegedly behaved unprofessionally).
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Quite simply. you send a motion to the secretary for inclusion in the next committee meeting agenda that the report be sent to all owners. The motion should be simply worded and non-controversial in itself.
If they refuse to include it, then you have a problem that could be resolved in a number of ways, all of which require time and effort, but probably start with seeking mediation at Fair Trading preparatory to taking a Section 232(2) action at NCAT to compel the committee to distribute the report.
This is obviously ammunition for your next AGM where, as you point out, the secretary MUST include owners’ motions in the agenda.
On a separate housekeeping note to all Flatchatters, the original post above was overloaded with coding that I had to manually remove. If anyone is writing in an Apple format, especially when it also includes material that you have copied and pasted from another source, intending to copy and paste all of that into the Forum, please save the document as a text file (.txt or .rtf) before copying and posting it.
It’s just a couple of clicks on your computer. Life’s too short to do all this afterwards when the coding appears as embedded text and has to be removed line by line.
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Ahhhh … an unfortunate typo. It’s 232 (2). And here it is.
Note to self: No late-night editing after the second glass of red.
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I can’t help thinking that if people can challenge an anti-pet by-law at NCAT for being,”harsh, unconscionable and discriminatory” then drying your washing would be a starter too.
You could always organise a “laundry resistance” in your building, with a concerted campaign with like-minded residents defiantly airing their undies along with their grievances.
But seriously, there will be others who feel just as strongly and if you all dry your laundry on the same day, then your committee will have to take all of you to NCAT – otherwise th e actions would be discriminatory – where there’s a chance you could get the by-law either altered or struck down.
Surely there’s a compromise, such as only forbidding it on certain days and times (like real estate open house days) when you might want the building to look its absolute best (although I don’t mind a bit of laundry flapping in the breeze to remind me that the world hasn’t gone completely insane).
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I think you need to talk to an experienced strata lawyer immediately about making a statement of claim.
If the builder is already refusing to fix things, then you need to step up the pressure and you are very likely to end up goping to a strata lawyer (like our sponsors Sachs Gerace Broome) eventually anyway.
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Imagine if they didn’t notice, drove off, lost control of the vehicle and injured someone …
Also the deflated parker would have a pretty good idea who let their tyres down – who knows what form their retribution would take?
The best “informal” response I have heard of involved a “don’t park here again” note on the bonnet, held in place with a house brick.
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I think you are over-extending on the negligence claim in a matter that’s quite simple, even though it has two elements.
The first is that the upstairs owners have enhanced the value of their property by using common property, and have done so without putting in place the normal ongoing commitments to maintain and repair their changes, or indeed, compensating the strata scheme.
The second issue is that the committee has decided to do nothing about this, a dereliction of their duty of care.
So first of all, you should tell the committee that you want the requisite by-laws for changes to common property to be put in place (including acceptance of ongoing responsibility for repair and maintenance).
Then you want the owners to pay the owners corp compensation based on the standard formula: increase in value of their property (as independently assessed) minus the cost of the actual installation.
And if the committee refuses to put these issues to a general meeting (called at the upstairs owners’ expense), you take them to the tribunal under section
282(2)[Actually it’s 232 (2) – see below] of the Act, seeking orders that the OC passes by-laws as outlined above.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.